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2015 Supreme(MP) 580
MADHYA PRADESH HIGH COURT
B.D. Rathi, J.
Manvendra Yadav v. Smt. Survesh and another
Miscellaneous Criminal Case No.9000 of 2014 (Gwalior);
Decided on 14.5.2015.
S.S. Raghuvanshi for petitioner;
Gagan Sharma for respondents.
Headnote:(1) Criminal P.C., 1973 -- Ss.125, 126(2) and 482 -- without proper service of notice on the petitioner -- maintenance amount awarded ex parte -- such order upheld in revision -- because remedy under section 126(2) not availed -- need not to file application under section 126(2) -- because notice was not served -- orders of Courts below set aside under inherent powers -- case remanded to trial Court for deciding application afresh -- as interim measure -- payment of awarded amount directed.
Held : It is clear that ex parte order passed by the trial Court was illegal because the same was passed without affording proper opportunity of hearing to the petitioner. It is against the principle of natural justice. In such premises, it was not necessary for the petitioner to move an application under section 126(2) of CrPC for setting aside the ex parte order. In such circumstances, this petition is hereby allowed. The orders impugned passed by the Courts below are hereby set aside.
Meanwhile, the petitioner is directed to pay awarded amount fixed by the trial Court in the same ratio to the respondents as an interim measure from today.
(2) Criminal P.C., 1973 -- Ss.126(2) and 125 -- without notice ex parte order under section 125 -- need not to file application for setting aside ex parte order -- against such order -- revision may be filed. [Para 11
(3) General Clauses Act, 1897 -- S.27 -- notice by registered post -- presumption of service -- notice returned with endorsement that addressee not found present at house -- such service cannot be treated as proper service.
Held : When the notice is not served and is returned and if there is no evidence to establish that the petitioner was responsible for return of the notice, presumption under section 27 of General Clauses Act cannot be drawn against the petitioner. In this case also, as discussed above, the notice returned back unserved, therefore, it cannot be held that proper service was effected on the petitioner.
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 125] 126¼2½ rFkk 482 && ;kph ij lwpuk dh leqfpr rkehy ds fcuk Hkj.k&iks"k.k jde,di{kh; vf/kfu.khZr &&,slk vkns'k iqujh{k.k esa fLFkj j[kk x;k && D;ksafd /kkjk 126¼2½ ds v/khu mipkj miyH; ugha fd;k x;k && /kkjk 126¼2½ ds v/khu vkosnu izLrqr djus dh vko';drk ugha && D;ksafd lwpuk dh rkehy ugha dh xbZ Fkh && varfuZfgr 'kfDr;ksa ds v/khu fupys U;k;ky;ksa ds vkns'k vikLr fd, x, && izdj.k vkosnu dk u;s fljs ls fofu'p;u djus ds fy, fopkj.k U;k;ky; dks izfrizsf"kr && varfje v/;qik; ds :i esa && vf/kfu.khZr jde dk lank; djuk funsf'krA
vfHkfu/kkZfjr % ;g Li"V gS fd fopkj.k U;k;ky; }kjk ikfjr,di{kh; vkns'k voS/k Fkk D;ksafd ogh ;kph dks leqfpr lquokbZ dk volj iznku fd, fcuk ikfjr fd;k x;k FkkA ;g uSlfxZd U;k; ds fl)kar ds izfrdwy gSA,sls vkeq[k esa ;kph dks,di{kh; vikLr djkus ds fy, na-iz-la- dh /kkjk 126¼2½ ds v/khu vkosnu djuk vko';d ugha FkkA,slh ifjfLFkfr;ksa esa],rn~}kjk ;g ;kfpdk eatwj dh tkrh gSA fupys U;k;ky;ksa }kjk ikfjr vk{ksfir vkns'k vikLr fd, tkrs gSaA
¼iSjk 11
bl chp] fopkj.k U;k;ky; fu;r vf/kfu.khZr jde dk mlh vuqikr esa vè;qik; ds :i esa vkt ls izR;FkhZx.k dks laank; djus ds fy, ;kph dks funsf'kr fd;k tkrk gSA
¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 126¼2½ rFkk 125 && fcuk lwpuk ds && /kkjk 125 ds v/khu,di{kh; vkns'k &&,di{kh; vkns'k vikLr djkus ds fy, vkosnu izLrqr djus dh vko';drk ugha &&,sls vkns'k ds fo#) && iqujh{k.k fd;k tk ldrk gSA ¼iSjk 11
¼3½ lk/kkj.k [kaM vf/kfu;e] 1897 && /kkjk 27 && jftLVMZ Mkd }kjk lwpuk && rkehy dh mi/kkj.kk && lwpuk bl i`"Bkadu ds lkFk okil fd ikus okyk ?kj ij mifLFkr gksuk ugha ik;k x;k &&,slh rkehy leqfpr rkehy ugha ekuh tk ldrhA
vfHkfu/kkZfjr % tc lwpuk dh rkehy ugha gS vkSj okil ykSVk gS vkSj ;fn ;g LFkkfir djus dh dksbZ lk{; ugha gS fd lwpuk okil ykSVkus ds fy, ;kph mÙkjnk;h gS] lk/kkj.k[kaM vf/kfu;e dh /kkjk 27 ds v/khu ;kph ds fo#) mi/kkj.kk ugha fudkyh tk ldrhA bl izdj.k esa Hkh] tSlh fd mi;qZDr foospuk dh xbZ gS] lwpuk fcuk rkehy ds okil ykSVh gS] blfy,] ;g vfHkfu/kkZfjr ugha fd;k tk ldrk fd ;kph ij leqfpr :i ls rkehy dh xbZ FkhA ¼iSjk 10
1. Heard.
2. This petition under section 482 of the Code of Criminal Procedure has been preferred invoking inherent powers of this Court for the following relief :
“By allowing this petition, orders impugned dated 23.7.2014 and 7.3.2013 passed by the learned Courts below be set aside or opportunity may be granted to the petitioner for filing an application under section 126(2) of the Code of Criminal Procedure after condoning the delay”.
3. In nutshell, facts of the case are that one application under section 125 of the Code of Criminal Procedure was preferred by the respondent-wife against the petitioner-husband for the relief of maintenance. Same was decided by the Judicial Magistrate First Class, Datia, in MJC No.27/12 vide order dated 7.3.2013. The order was passed ex parte against the petitioner and the petitioner was directed to pay an amount of Rs.1,500/- per month to respondent No.1 wife and an amount of Rs.800/- per month to minor daughter. That order was challenged by way of filing criminal revision which was registered as Criminal Revision No.39/14. But the same was also dismissed vide order dated 23.7.2014. Being aggrieved by the order passed by the revisional Court, this petition under section 482 of Code of Criminal Procedure has been preferred.
4. The only point involved in this petition is whether without giving an opportunity of hearing such kind of ex parte order can be passed against the petitioner?
5. It is submitted by learned counsel appearing on behalf of the petitioner that revisional Court in its order dated 23.7.2014, in para 10, has observed that no notice was served upon the petitioner. Registered notice sent to the address of the petitioner returned unserved with the endorsement that petitioner was not found present at the house. On these premises, trial Court passed the ex parte order and proceeded accordingly. It was also observed that no application under section 126(2) of CrPC was preferred to set aside the ex parte order before the trial Court. Therefore, this point cannot be considered in revision petition and accordingly revision petition was dismissed.
6. It is further submitted by learned counsel that when opportunity of hearing was not provided to the petitioner and on the wrong notion it was presumed that notice was served, ex parte order was wrongly passed. It is also submitted that it was not necessary for the petitioner to file an application under section 126(2) of CrPC before the trial court to set aside the ex parte order. But the illegality can be challenged by way of preferring criminal revision, therefore, the observation made by the revisional Court was also wrong and thus the orders passed by the learned Courts below be set aside. Lastly, it is also submitted by learned counsel for the petitioner that if petition is ultimately allowed then the petitioner is ready to pay the amount of maintenance as an interim measure from the date of passing of the order by this Court to the respondents.
7. Per contra, it is submitted by learned counsel appearing on behalf of respondent that orders passed by the learned Courts below are well merited and no interference is required in them because even after service of notice when the petitioner did not appear before the trial court then the trial Court had no option except to proceed ex parte against the petitioner.
8. Having regard to the arguments put forth by the learned counsel for the rival parties, entire record has been perused.
9. In para 10 of the order passed by the revisional Court, it was clearly observed by it that registered notice was sent to the petitioner and the same returned unserved with the endorsement that petitioner was not found present at the house. In such premises, it could not be presumed that service was properly made.
10. The presumption provided under section 27 of (The) General Clauses Act 1897 (Central) can be invoked if it is proved that notices were sent on the correct address of the petitioner. When a registered
